In the Commonwealth, even paying for public records doesn’t guarantee you’ll get them

It’s Sunshine Week, the annual national initiative to promote open government and access to public records. Meteorologists have predicted rain and clouds across Massachusetts for the next several days—and the outlook for transparency in the Bay State is equally bleak.

“It’s pretty ironic that a state like Massachusetts that is so progressive in a lot of different ways can be so behind in some ways,” says Evan Anderson, a contributing writer for MuckRock, a Boston-based website that facilitates public records requests for its users. “[The] transparency and the accountability just really doesn’t seem to be there.”

Anderson knows from first-hand experience that the Commonwealth has one of the worst freedom of information laws in the country. A few years ago, he began looking into the relationship between the Boston Police Department and the shadowy National Security Agency. On June 26, 2014, he sent the police department a request for its email correspondence with the NSA during three periods, specifically related to Occupy Boston and the 2013 and 2014 Boston Marathons.

The law gives agencies no more than 10 days to respond. But in this case, the department waited more than two months before asking Anderson if he wanted to narrow his request due to “[m]any of [the emails] contain[ing] ‘Happy Birthday’ emails that go back and forth between multiple people.” While the apparent friendliness between the two agencies piqued Anderson’s interest, he agreed to let department set aside the birthday wishes to save time and money. But it was still more than two months before the department provided a fee estimate for the records.

The BPD ultimately asked for $402.50 for some 700 pages worth of emails. “I didn’t expect it to be that [many pages],” Anderson says. “Apparently the Boston police and the NSA are pretty close and have a lot to talk about with each other.” He crowdfunded the money, and MuckRock sent a check on December 18, 2014. According to MuckRock Editor J. Patrick Brown, the police cashed the check on January 8, 2015.

If you think waiting months for a response and having to pay $400 for public records sounds bad, keep reading. You haven’t even gotten to the punchline yet: In the more than a year since the police department took the money, it still hasn't provided the damn records.

In the time since MuckRock cut the check, Anderson has emailed the department more than two dozen times, but it has never responded. Late last year, he began calling. Anderson has spoken with a number of different people, but none of them have given a clear explanation for the holdup.

The face of failure: Lieutenant Michael McCarthy.

“I’ve lost count of how many times I’ve called them,” Anderson says. One spokesperson told him BPD was still waiting for payment, but was unable to say whether it had received the check that the department cashed nearly one year prior. Others said he would get a call back from Lieutenant Michael McCarthy, who made $202,231.92 last year as the department’s media relations director, but that never happened. McCarthy did not respond to our request for comment either.

During Anderson’s most recent call on March 8, someone finally told him that lawyers for the department were redacting the emails, and that it might be several more weeks before he received them. He still isn't convinced.

“Each day it feels less and less likely that I will wake up and get the emails,” Anderson says. “The Boston police are the worst when it comes to records. I’ve had requests with them that just haven’t even been responded to … I’m not sure how they are so disorganized, but however they do it definitely has the side effect, or serves the function of, discouraging people from filing requests with them.”

Anderson isn’t the only one struggling to pry records from BPD’s clutches. After he declined to pay for the “happy birthday” messages between the police department and NSA, independent journalist Joshua Eaton made a separate request for them. It took several weeks and a number of follow ups, but the department eventually provided Eaton with a fee estimate of $402.50. Two weeks later, the department withdrew the fee estimate because it was actually intended for Anderson’s request. Despite 13 follow-up emails, the BPD never gave Eaton an accurate fee estimate.

Eaton tried appealing to the secretary of the Commonwealth’s office, but it refused to help him because his request was over 90 days old. From there he refiled his request, and the Boston police again failed to respond. Eaton appealed again, and on October 5, almost three months after opening the very simple appeal, the secretary of the Commonwealth’s office ruled that the police had to answer the request. To this day, the department has not responded.

In fact, Boston police actually warn everyone who sends them a public records request that they intend to violate the law by sending a boilerplate email that explains the request “may take longer than ten days to be fulfilled” and advises the requester to “[p]lease plan accordingly.”

“I can’t plan that far ahead,” Anderson quipped.

In total, MuckRock has sent the Boston police nearly 200 records requests in the past six years. Of the more than 100 requests that have been completed, it took an average of 91 days for the department to comply.And about three dozen of MuckRock’s outstanding requests are currently overdue.

It's not just the Boston police who obstruct records requests. A massive audit by Northeastern University journalism students and the Boston Globe recently found that 58 percent of the Commonwealth’s 351 municipalities did not respond to requests within 10 days, as mandated by law. While Anderson calls the BPD the worst, it was the Massachusetts State Police who won last year’s Golden Padlock “Award” when Investigative Reporters and Editors, Inc. named them the most secretive government agency in the country. And there’s no real enforcement of the law either; as we’ve documented in this column, the secretary of the Commonwealth and attorney general, who are responsible for public records oversight, aren’t doing anything to hold lawbreaking public officials accountable.

A major effort to update the public information law is currently underway; state legislators have finally acknowledged that the Massachusetts records law is an embarrassment and decided to take action. But their proposed updates could either make the law even worse or create some mild improvements that still fall short of making the law functional, so our work will nevertheless be cut out for us.

Here’s to hoping the next Sunshine Week is brighter—literally and figuratively.

BONUS: The Secretary of Secrecy, Part II: Last week, in what seems to be an attempt to save face, Secretary of the Commonwealth William Galvin stole our state legislators’ thunder by issuing new regulations that reduce the allowable copying fees for records to five cents per page. The public records update bill, which lawmakers are likely to pass this summer, would do the same thing.

The public records law holds that copying costs must reflect the actual cost of providing the records, but the secretary of the Commonwealth’s office has held since 1983 (years before Galvin took office) that agencies can charge 20 cents per page for photocopies and 50 cents per page for printing records from a computer. Back in August, Galvin proposed a ballot question that would have set the price at 15 cents per page, raising the question of why he didn’t just update the regulations back then to reflect the actual cost. Also, why does he now believe the actual cost is a third of what he thought it was just a few months ago?

Also, check out our friends The Young Jurks on WEMF Radio, who have had us on as guests recently. You can hear Andrew talking about the public records update bills here. You can find more episodes of The Young Jurks on WEMF and iTunes, and listen live every Saturday at 6 pm.